A Co Louth man, Thomas “Slab” Murphy, is challenging the constitutionality of a law under which tax charges against him are to be dealt with by the non-jury Special Criminal Court (SCC) rather than the ordinary courts.
Mr Murphy (60), Ballybinaby, Hackballscross, Co Louth, is being prosecuted on nine charges of failing to furnish tax returns for the years from 1996/97 to 2004. The charges were brought in November 2007 following an investigation by the Criminal Assets Bureau (CAB).
That prosecution is on hold pending the outcome of High Court judicial review proceedings by Mr Murphy which opened yesterday before Mr Justice Daniel Herbert.
His lawyers claim the decision to try him before the SCC rather than before a jury in the ordinary courts breaches his rights under the Constitution and European Convention on Human Rights (ECHR), including his right to fair procedures, his good name and equality before the law.
They say the decision was taken by the DPP in secrecy with no explanation or reasons given.
The State and the DPP deny the claims.
Outlining the case yesterday, Michael O’Higgins SC, for Mr Murphy, said the power to try someone before the SCC comes from the 1939 Offences Against the State Act as provided for under Article 38.3.1 of the Constitution which allows for the setting up of special courts to “secure the effective administration of justice, and the preservation of public peace and order”.
The 1939 Act provided that certain scheduled offences, including membership of an illegal organisation and firearms offences, could be tried before the SCC, counsel said. It also provided for trials related to the particular circumstances of a particular individual, or related to a certain type of offence that might alter the DPP’s view in order to secure justice, he said.
What was at issue in this case was whether or not the power conferred under the 1939 Act is constitutional or alternatively incompatible with the ECHR, counsel said.
Mr O’Higgins said his side wrote to the DPP in 2008 asking for an explanation of how the decision to certify a trial before the SCC was arrived at. They were told the decision was taken in accordance with relevant statutory provisions and case law and the DPP was not required to state reasons for his decision.
Mr Murphy’s lawyers wrote again saying, while the DPP was not obliged to give reasons, that did not mean reasons could not be given and asked again that the reasons be set out. A one line reply was sent referring to the previous letter from the DPP.
Mr O’Higgins said their case was that the manner in which the power conferred on the DPP to certify trial in a special court was too unfettered and involved a conferral of absolute power which is excessive in circumstances where there was no screening, transparency or accountability.
Nothing is known about how the DPP reached his decision and there were no procedures, unlike in other countries, which allow that decision to be reviewed, counsel said.
Michael Collins SC, for the State, said the issuing of a certificate (for an SCC trial) was an administrative function. It was open to the plaintiff to challenge the issuing of the certificate at the time it was issued but he had not done so.
There was also no argument that Mr Murphy he would not receive a fair trial in the SCC, Mr Collins said.
The case continues.
